Judgment B.N.P.Singh, J. 1. Sequence of events, of which horrendous act was a fall out, can be traced to a preceding trifle matter, as it was alleged that preceding the day of incident, Ram Badan Singh, Incharge Homeguard personnel, posted at BTPS bus stand check post, had asked the nearby shopkeeper to supply tea for him, and in the following morning, which was the fateful day, finding glass of tea not available in his room, he questioned and reprimanded Abhinai Kumar Rai, another homeguard personnel posted in the said check post who, on being questioned, turned amok, reacted and consequently took out rifle from the magazine room and shot Ram Badan Singh, Incharge Homeguard, who was washing clothes near a handpump in the courtyard, with all brutality which was possible to be unkind and cruel to his fellow homeguard personnel. 2. The prosecution case, without much of factual details, as made out, further depicts that Shobha Kant Jha (P.W.3) was on sentry duty and two other homeguard personnels, namely, Prabhu Yadav (P.W.4) and Anil Kumar Choudhary (P.W.6) were cooking meal in the kitchen. It was alleged that shortly after Abhinai Kumar Rai (hereinafter referred to as the appellant) fired shots on Ram Badan Singh (hereinafter referred to as the deceased), he wanted to make successive firing, pursuant to which he was overpowered by Shobha Kant Jha (P.W.3), who relieved him of his rifle. Evidence of Prabhu Yadav (P.W.4) did suggest that he immediately informed the Police Officer of Chakia Outpost, and the Police Officer having visited the place of occurrence, recorded fardbeyan of Shobha Kant Jha at 9.20 hours on 1st February, 1992, pursuant to which investigation followed. In the process of collection of evidence, the Police Officer, it is stated, recorded statement of witnesses, yisited place of occurrence, seized cartridges and empty shells of cartridges from the place of occurrence, prepared inquest report over the dead body, got autopsy held and eventually laid charge sheet before the Court against the appellant. In the process of collection of evidence, the Police Officer, it is stated, recorded statement of witnesses, yisited place of occurrence, seized cartridges and empty shells of cartridges from the place of occurrence, prepared inquest report over the dead body, got autopsy held and eventually laid charge sheet before the Court against the appellant. In the trial that followed, State examined ten witnesses, of whom barring Anant Nand Prasad (P.W.10), who was a formal witness, others who rendered their evidences during trial to lend assurance to the accusations attributed to the appellant, happened to be homeguard personnel posted at the checkpost, the doctor, who held autopsy over the dead body of the deceased, and Sergeant Major, who examined firearm to determine its effectiveness. 3. Defence of the appellant was that the deceased met his tragic end elsewhere, preceding the time of incident, and it was only on account of bitterness among the homeguard personnels with regard to sharing the booty, that the appellant was sought to be falsely implicated by the companion homeguard personnel. However, no witness was examined on behalf of the appellant and the trial court on evaluating the probative value of the witnesses examined by the State, while negativing contentions raised on behalf of the appellant, recorded finding of guilt against the appellant under sections 302 and 307 Indian Penal Code (IPC) and also section 27 of the Indian Arms Act, and while for the first count, the appellant was sentenced to undergo life imprisonment, for the second count, he was sentenced to undergo rigorous imprisonment for ten years, and as for his conviction under section 27 of the Arms Act, the appellant was sentenced to undergo rigorous imprisonment for a term of five years, with a direction that all the sentences shall run concurrently. 4. Shri Lala Kailash Bihari, who appeared as amicus curiae in the appeal, has addressed the court in much details and has sought to assail the findings recorded by the court below on various premises. It was sought to be urged that the finding recorded by the doctor was not in conformity with the ocular account given by the eye witnesses, not only about distance from which the deceased suffered gun shot injuries by the appellant, but also about nature of injuries and also the posture of the deceased. It was sought to be urged that the finding recorded by the doctor was not in conformity with the ocular account given by the eye witnesses, not only about distance from which the deceased suffered gun shot injuries by the appellant, but also about nature of injuries and also the posture of the deceased. Contentions were raised that though the deceased was shown to have suffered injuries from close range, as has been the statement of the witnesses, the doctor had not noticed charring and blackening around the wound which would negate the ocular account given by the witnesses. The other plank of argument canvassed on behalf of the appellant was that the immediate cause of incident, which was projected to be the genesis of the incident, was so trifling that a person was not expected to have reacted so strongly to take recourse to extreme step of executing killing of a homeguard companion personnel. In quick succession, it was sought to be urged that evidences placed on the record failed to suggest that Shobha Kant Jha, too who stated to have overpowered the appellant shortly after firing, had a rifle with him and though he had a scuffle with the appellant, it was most unlikely that apprehending danger, which was looming over his head of getting injured at the hands of the appellant, he would not use his arms in self-defence. Failure of the State to place on the record, written complaint made by Ram Badan Singh, Incharge homeguard, to Shri K. Dutta, a superior Police Officer, was also taken to be a ground to suspect the bona fide of the prosecution allegation atrributed to the appellant. Yet, it is urged that it would appear from the evidence of none else but Shobha Kant Jha (P.W.3) that adjacent to the said check post; a number of shops situate, and the said check post itself is beside bus stand, which was a busy place, but no witness either from the neighbouring shops or the bus stand had come to lend assurance to the prosecution allegation. It is stated that a duty register is maintained in the checkpost, as has been the evidence of the witnesses, but even the said duty register was not placed on the record. It is stated that a duty register is maintained in the checkpost, as has been the evidence of the witnesses, but even the said duty register was not placed on the record. While commenting on the credibility of the witnesses about Shobha Kant Jha having suffered gun shot injuries at the hands of the appellant, it was urged that both Anil Kumar Choudhary and Prabhu Yadav, in view of narrations made by them, did not appear to be ocular witness to the successive firing resorted to by the appellant causing gun shot injury in the neck of Shobha Kant Jha. and even the doctor, who clinically examined him, had noticed only scratch on posterior part of ear in the neck and that injury too in estimation of the doctor, was possible by scratch of neck. 5. Before we give our due consideration to the contentions raised at Bar on behalf of the appellant, a brief narration of the evidence of the witnesses, which have also been spelt out in the judgment of the court below, would be necessary for their appreciation. Shobha Kant Jha (P.W.3) in conformity with his earliest version which he rendered before the Police, had reiterated them at trial stating that at 9-10 hours on 1st Februaruy, 1992, while he was on sentry duty and Ram Badan Singh was wahing clothes near handpurnp in the courtyard, appellant abruptly rose from his bed, entered the magazine room, took out his rifle from the stores, and fired shot on Ram Badan Singh who dropped dead bleeding profusely. When the appellant wanted to make successive firing, he apprehending danger, escaped. However, in the process of escape, he too suffered injuries in his neck on the skin. About genesis of the incident, the witness would reiterate about gruesome killing of the deceased on most trifling and petty issue, as in the preceding evening, glass of a nearby shopkeeper in which tea was brought for Ram Badan Singh, was found missing from the room, for which the deceased had questioned the appellant suspecting his complicity for theft of the glass, and a report to that effect had been sent to the superior officer for theft of the glass and also cartridges. 6. 6. Now adverting to the evidence of other witnesses, who claimed to be ocular, we find Prabhu Yadav (P.W.4) stating at trial that on the fateful day, while he along with Anil Kumar was cooking meal inside the kitchen, Ram Badan Singh, the deceased was washing clothes near handpurnp in the courtyard. The appellant too, who was posted there, abruptly entered the magazine room, took out his rifle from store, came in the courtyard and shot dead Ram Badan Singh and while he was loading cartridge in the rifle for successive firing, he along with Anil Kumar Choudhary escaped in the pump house. Though the appellant fired twice, it passed beside neck of Shobha Kant Jha who eventually overpowered him. It was only on alarm raised by Shobha Kant Jha, that he came inside the courtyard, and as for the genesis of the incident, this witness too had reiterated same facts as mentioned by Shobha Kant Jha. 7. Toeing the line of Prabhu Yadav (P.W.4), Anil Kumar Choudhary (P.W. 6), another homeguard, posted in the check, post would state at trial that at about 9 a.m. on 1.2.1992, while he was cooking meal in the kitchen along with Prabhu Yadav (P.W.4), he noticed the appellant entering inside the magazine room, who took out his rifle and shot dead Ram Badan Singh who was washing clothes near the handpump in the courtyard, and when the appellant wanted to take recourse to successive firing, he escaped from there, and when he came back, he found the appellant in custody of Shobha Kant Jha. 8. There are evidences of other witnesses too who did not claim to be ocular witness to killing of Ram Badan Singh by the appellant, and they happened to be Naresh Yadav (P.W.1). He states that while he had gone to field to answer natures call, he heard sound of firing and when he came, he noticed Anil Kumar Choudhary and Prabhu Yadav running, who took shelter in the pump house. The witness stated to have noticed Ram Badan Singh dead near the pump house. He states that while he had gone to field to answer natures call, he heard sound of firing and when he came, he noticed Anil Kumar Choudhary and Prabhu Yadav running, who took shelter in the pump house. The witness stated to have noticed Ram Badan Singh dead near the pump house. Narration made by Janardan Paswan (P.W.2), another homeguard personnel, is almost in similar term and vein, and he too states that on 1.2.1992, while he was washing his mouth east to the pump house at about 9 a.m., he heard sound of firing and when he ran towards the courtyard, Prabhu Yadav and Anil Kumar Choudhary exhorted him to run and he too took shelter in the pump house when he heard sound of firing, and when he came out from the pump house, he noticed Ram Badan dead near the hand pump in the courtyard. 9. Yet another witness namely, Sushil Kumar (P.W.5) too, examined by the deceased did not claim to be ocular witness to the killing of the deceased, as he too states that while he was washing his mouth, he heard sound of firing and when he came inside the courtyard, he noticed Prabhu Yadav and Anil Kumar running, who stated him about appellant having shot dead Ram Badan Singh. He stated to have heard another sound of firing, and when he came in the courtyard, he noticed Ram Badan Singh dead and the appellant in the custody of Shobha Kant Jha. 10. Now we may refer to the finding recorded by the doctor who held autopsy over the dead body of Ram Badan Singh. Dr. S. M. Baquer (P.W.8) states to have held autopsy over the dead body of the deceased and the doctor states to have found following ante mortem injury on the body of the deceased :- Firearm wound about 1/2" in diameter on the top of head about 1" above occipital bone with inverted margin, and the brain matter coming out from the said wound. On dissection, almost all the bones of the vault of skull was fractured. Cause of death, in opinion of the doctor was shock and haemorrhage produced by injury no.1. The doctor in his cross examination too reiterated that there was only one shot and the bullet was found below the right nipple travelling from the top of the head. On dissection, almost all the bones of the vault of skull was fractured. Cause of death, in opinion of the doctor was shock and haemorrhage produced by injury no.1. The doctor in his cross examination too reiterated that there was only one shot and the bullet was found below the right nipple travelling from the top of the head. The doctor stated to have not found blackening and charring around the wound. 11. Other witness examined by the State Laxmi Narain Jha (P.W.9) who was sergeant major, stated to have examined the fire arms produced before him and he found it effective from which projectile had been fired. As was stated, the last witness Anant Nand Prasad (P.W.10) was quite formal and there was nothing in his evidence to merit consideration. 12. The physical features of the place of occurrence, as stated by the witnesses, show that there were three rooms in the courtyard of the check post, two of which were used for living of the homeguard personnel, and one was used for storage of the firearm. Facing north to this room, was the hand pump in the courtyard, where the deceased is stated to have been washing clothes. As has been the evidence of the witnesses, the appellant abruptly rose from his bed, entered the magazine room, took out rifle from the store and fired shots on the deceased. The distance between the assailant and the deceased as has been stated by the witnesses, was about 6 metres. The doctor in his estimation states that shot was made from a long range and from long range, he meant more than 6 metres. Both Modi and Cox have not ruled out situation in which firing resorted by short distance did not produce charring around wound, as much depends on the quality of the weapon and also projectile fired by the firearm. However, taking the variation, as has been stated at Bar, between the finding recorded by the doctor and the ocular account given by the witnesses, these are simple estimations. However, taking the variation, as has been stated at Bar, between the finding recorded by the doctor and the ocular account given by the witnesses, these are simple estimations. Neither witnesses are expected to state with mathematical precision about distance, nor the finding recorded by the doctor can be a conclusive evidence about distance from which projectile was fired by the appellant and hence contention raised at Bar about there being infirmity in the ocular account given by the witnesses, which runs counter to the finding recorded by the doctor, has to be rejected. 13. Taking narration made by Prabhu Yadav (P.W.4) about he having rendered statement before the Police Officer at Chakiya Outpost, counsel appearing for the appellant as amicus curiae, would urge with ail vehemence that since earliest version rendered by the witness has not been placed on the record, fardbeyan rendered by Shobha Kant Jha did not assume character of the first information report, and on this score too we would negate contentions raised at Bar on behalf of the appellant, for the simple reason that the information rendered by the witness has not been placed on the record, and that apart oral message given to a Police Officer, which may be cryptic, did not assume the character of a first information report. As has been noticed, failure of the State to place on the record written report submitted by Ram Badan Singh to Shri Dutta, Senior Officer, was also taken to be a ground to assail the bona fide of the prosecution version. But none of the witnesses were emphatic in their assertion that in fact the report, written by Ram Badan Singh had been sent to the Senior Police Officer, and as such we are of the view that even if there be any such written report submitted to the Senior Police Officer, that did not introduce any legal infirmity in the prosecution version. Likewise, we hold the view that failure of the State to place on the record the duty register, was not a vital issue which would materially affect the broad features of the prosecution case. Likewise, we hold the view that failure of the State to place on the record the duty register, was not a vital issue which would materially affect the broad features of the prosecution case. True it is that the witnesses state that Shobha Kant Jha too held fire arms with him who in his bid to overpower the appellant, had also scuffle with him but only because Shobha Kant Jha did not react in same fashion as that of the appellant taking law in his hand in taking recourse to firing, would not make the prosecution case unworthy of credence. If Shobha Kant Jha even on being scared on witnessing the appellant holding fire arms had not reacted, and acted with all restraint in catching hold of the appellant, would in our view shows his virtue, rather demerit or any lapse on his part. Though some astray statement made by some witnesses was also brought to our notice by the learned counsel, such astray statement made by some witnesses cannot be read in entirety for its exclusion from zone of consideration, and in our view no hair splitting criticism can be made on this count. Though some variations in the testimony of witnesses with regard to posture and situations in which the deceased sustained gun shot injuries, in the backdrop of panic, that generated from the horrendous act of the appellant, may occur, when they speak of details, unless such variations are of materia] dimension, the same cannot be used for rejection of the evidence in entirety. That apart, corroboration of evidence with mathematical precision or nicety cannot be expected in criminal cases as it is almost well nigh impossibility that even true and ocular witnesses while rendering ocular account of the incident would not make discrepant statement, when they are speaking on details. The appellant, who too was a homeguard personnel, had been reprimanded by the deceased, and it appears that he took it an onslaught on him and reacted sharply in executing killing of the deceased. The appellant, who too was a homeguard personnel, had been reprimanded by the deceased, and it appears that he took it an onslaught on him and reacted sharply in executing killing of the deceased. Though such strong reaction on such trivial matter does not visit all human beings but it all depends as to how one reacts in similar situation, and that apart, when the prosecution has led direct and unimpeachable evidence, such motive, even if be weak, pales into insignificance, and with no mathematical precision one can guess as to what actuated a wrong doer to persuade him to commit a crime. 14. Having gone through the narrations made by the witnesses and making analysis of them, we find that the narrations given by the witnesses about killing of the deceased by the appellant would not suffer infirmity or blemishes, and, hence finding recorded by the trial court finding the appellant guilty under section 302 IPC and sentencing him to suffer life imprisonment, did not merit interference, and the finding appellant guilty on the other count under section 27 of the Arms Act too was well reasoned. However, we have noticed that so far conviction suffered by the appellant under section 307 IPC was concerned and also the sentence imposed on him, we have noticed that none of the two witnesses, namely, Anil Kumar Choudhary or Prabhu Yadav claimed to be ocular witness to the second shot of firing causing injury to Shobha Kant Jha. We have noticed that even the narrations made by the injured did not inspire much confidence. He stated to have suffered such injury in process of making escape from the courtyard and it appears to be unlikely that he would suffer superficial injury. 15. There are yet other disturbing features of the prosecution case on this count. The injured stated to have got himself clini cally examined by the doctor at BTPS who did not issue injury report, but we have noticed that finding of the doctor suggests that he issued injury report to the injured. The witness himself in the next breath has stated that only after 2-3 days, he went to his village home, where he got himself clinically examined by village doctor and his village too situates at a distance of 20 Kms from the place of occurrence. The witness himself in the next breath has stated that only after 2-3 days, he went to his village home, where he got himself clinically examined by village doctor and his village too situates at a distance of 20 Kms from the place of occurrence. It looks rather unusual that for such an injury, the witness would be so much worried to get himself examined by a village doctor who is posted at a distance of 20 Kms, even though the doctor may be available in the urban area, and for the injury suffered by Shobha Kant Jha, we have noticed that the doctor too has found that such injury was possible by scratch on neck and in this backdrop, we find that the finding of guilt recorded under section 307 IPC and sentencing the appellant on that count did not appear to be reasonable and hence on this score, we find that there had been no sufficient and clinching evidence on the record to sustain this finding recorded under section 307 IPC. 16. Having given our anxious and deepest consideration to the evidence placed on the record and contentions raised at Bar, while the appellant is not found guilty under section 307 IPC and the sentence imposed on him on this count is set aside rest finding of the trial court is upheld which did not require interference and with this modification, the appeal being meritless is dismissed. Shri Lala Kailash Bihari, who has appeared as amicus curiae on behalf of the appellant, shall be paid his fee from the Patna High Court Legal Aid Committee. P.K.Sinha, J. 17 I agree.